Arbitrator Denies Employer's Request for Audio Recording and In-Person Hearing in High-Profile Sex Misconduct Case

In a recent decision, Arbitrator Jacquie de Aguayo denied the Employer's request to permit audio recording of the hearing and to hold the remaining hearing dates in person. The case involves a highly sensitive and personal matter, with the Employer alleging that the Grievor engaged in sexual misconduct towards a student. The Arbitrator considered various factors, including the potential impact of audio recording on the integrity of the process, the highly personal nature of the witness's evidence, and the real or perceived risks to privacy.

Key Takeaways:

• The Arbitrator denied the Employer's request to permit audio recording of the hearing, citing concerns that it could undermine the orderly and expeditious resolution of the dispute.
• The Employer's request for an in-person hearing in May 2024 was also denied, with the Arbitrator finding that a virtual hearing would be more suitable given the sensitive nature of the testimony.
• The Arbitrator considered various authorities and precedents, including Mosaic Potash Colonsay ULC and USW Local 7656 (Jansen) and SELI Canada Inc. v. Construction and Specialized Workers' Union, Local 1611.
• The Employer's proposed solution to share costs of audio recording equally between the parties was also rejected.
• The Arbitrator noted that credibility is an issue in this case, but found that videoconferencing technology permits observation comparable to in-person hearings.
• The Employer's denial of requested virtual hearing may be seen as an example of resistance to technological advancements that can aid in the fair and efficient resolution of disputes.

Statistics:

• The hearing is scheduled to commence on March 12, 2024, with the first four hearing days proceeding virtually.
• The remaining hearing datesscheduled for May 14-17 and May 28-31, 2024 will proceed virtually.
• The Employer proposed that any order limit access to, and the download of, the audio recording to the arbitrator and the parties' counsel.
• Arbitrator Jacquie de Aguayo has been presiding over this case since the beginning, making this decision an integral part of the ongoing process.
• The case involves highly sensitive and personal matters, which has led to concerns about the potential impact of audio recording on the integrity of the process and the real or perceived risks to privacy.
• The Employer's request to permit audio recording was denied, citing concerns about the potential impact on the efficient conduct of the hearing.